Bad Consent to Search?

[emhealy78]

Elaine from Massachusetts

I have been going back and fourth between too men and their homes. One mans house was raided while I was there and he was not. I showed them the lease and told them that this wasn't my house. They said "sign the consent or we are taking your daughter" So out of fear of my baby I did.

Bad search?

They had no warrant.....they had been waiting in the neighborhood for me to pull in.

Any advice would be great.
Thanks so much

 

[tranquility]

To begin, unless the police claim something they found belongs to you, you don't have standing to challenge the search.

Next, you can make a claim that the consent was not "freely and voluntarily" given based on the specific threat to sign the consent form or they will take away your child. The burden of proof is on the prosecution and is based on the totality of the circumsatnces. Some factors to consider are whether you were under arrest or you were told you did not have to consent, or you were told a search warrant could have been obtained among many others.

If you were in the 9th circuit (which you are not) you would have a specific case, United States v. Soriano (9th Cir. 2003) 346 F.3rd 963, where it was held that threatening to take away one's children if they did not consent negated the consent to search. However, the police often try to make you think something without actually saying it. Are you sure they made such a threat?

Finally, police can rely on who they reasonably believe had authority over the premises. This apparent authority, again, relates to the totality of the circumstances and proof of the lease or stating you did not live there would not per se negate that. Why were you there? Did you have a key? Did you have the right to go anywhere in the house? Where was the fruit, stuff, whatever found? More facts would be required to determine if there is a winning issue here.

 

[Kane]

Were you charged with a crime?

 

[emhealy78]

Tranquility....thank you for your response and I'll give you a little more detail.

Because of the search I have been charged with 2 counts of receiving stolen property.

When the first Trooper came in he said "do you ever want to see that little girl again?" and was babbling about me being there. Then a second trooper came in and the first went back out front and the trooper asked me to see the lease. I showed it to him and told him that this wasn't my legal residence. He looked at me and said "sign the consent or we're taking your daughter" while motioning with his head towards her photograph on the wall. I'd do anything if I thought someone was going to take my child.

The first thing I did when I was allowed to again see the person that was at the house with me (just a friend....not involved) was I said to him "they said they were going to take *daughters name* if I didn't sign it" I also told this to my brother who told me to tell my lawyer. My lawyer is in NH but I did tell him so he would have it on record and he said that he would work with whatever lawyer was appointed to me.

I was not under arrest at the time. I was never arrested in MA...recieved my charges in the mail. No mention of a warrent was ever made. All I know is one big trooper yelling at me and a minute later the other one is telling me they are gonna take my kid.

Yes I did have a key, and have most belongings there. The fruit were found in places I never go because I never have to. The basement and a shed out back. The only reason I was there at that time was to pick up some clothing so I could stay at another location because the renter of the property was in jail.

Thanks so much,
Elaine

 

[tranquility]

While the facts would be for the judge to decide (eventually, a jury), it seems to me you either had the actual right to consent or an apparent right to consent to a search of the premises. If I were a cop and saw all your stuff in a place, your daughter's picture on the wall, a key and etc. I would think you had some control over the house sufficent to give consent to search.

That you did not actually go to the areas usually (the basement and shed) I don't believe is the issue. Did you have the right to go into those areas? From how you answered, I think you did. Your ability to consent to a search there seems not an issue. The problem usually develops when there is a roomate where the consenting person is not allowed in the roomate's bedroom without permission. Then, the consent to that room is a problem.

Depending on how the consent was written, the shed may be considered beyond the scope of the consent. It's not much of an issue, but if the consent was poorly written, you might have something.

Your description of the threat seems like it rises to the level where the consent may not have been freely and voluntarily given. You may even have a modicum of proof in that you told others about it immediately. However, it's still going to be a swearing contest. It's going to be tough if you've been in trouble before--especially if it is for similar acts.

But, look to the case I cited earlier. It will tell you all the issues to look for. Don't be put off in that the case allowed the search to take place because the problem was "cured" by a federal agent immediately assuring that the child would not be taken after that threat was made by a local cop.

 

[fairisfair]

you don't go in the basement or the sheds but just happen to know where the copy of the lease is located??? come on.

 

[emhealy78]

Fairisfair - I never went into the shed or the basement for different reasons. The home is on good sized piece of land and the shed set way back. Being winter in New England and having only been there since December I just hadn't ever had oppertunity or reason to just go back there and check it out. Not since the first time we saw the house with the landlord. I never went in the basement, again, because I never had any reason too. The laundry and everything is located on the first floor and if there was ever a problem with the furnace or something he would take care of it. The furthest I ever went was to the top of the stairs to say "dinners ready" or something like that.

Regaurding the lease, of course I knew where it was. It was in a file folder with other documents about the house. It's a signed contract and needs to be kept in an appropriate place. I thought thats why people purchased desks with filing cabinets?

Tranquility - I have never before been in trouble with the law. Not even as a youth. This is a first ever for me. There was not a "roommate"...we shared a bedroom and my daughter was in another. I will research the case you indicated a little further. I appreciate all your wisdom.

Thanks again
Elaine

 

[emhealy78]

Any further thoughts would be greatly appreciated
Elaine